Courtroom 'Vastraharan': Are we asking for it?

The case of Asumal Thaumal Harpalani, popularly known as “Asaram Bapu”, is not the first time that popular godmen have faced public scrutiny for illegal sexual activity. In fact, public imagination is obsessed with the notion of cults and deviant sexual practices, and godmen exploiting innocent devotees, which the media is too happy to pounce on and exaggerate. Whether it is the late Sathyanarayana Raju’s affinity for “special darshans” or whispers about why exactly an HIV negative certification is required for entry to the Osho Ashram at Koregaon Park, Pune, or Rajsekharan, styled as Swami Nithyananda, asking for a “Non Disclosure Agreement” from female disciples  – sex and spirituality is a big, big deal. Nothing quite excites the populace like a good old fashioned Indian show of hypocrisy, and with a dose of sex, editors can just sit back and watch the TRPs skyrocket.

With Harpalani’s case, we were informed, in great detail, of his clearing of the potency test and “affidavits” began pouring accounting his rather colourful past. With the media against him, and public sentiment being as “anti-rape” as it has ever been, there was obviously only one man who could have defended him.

I’m a huge fan of Ram Jethmalani, as any law student turned criminal lawyer should be. Jethmalani has been literally laying down the law for decades now, and controversially taken up the causes of the “indefensible” because hey, they are entitled to the best possible defence. In an era where Bar Councils inexplicably turn away while their Advocate members beat up accused persons while they pass resolutions to not take up their cases, a senior lawyer standing tall and immune to criticism from, at times, dim witted journalists (which makes for great viewing, though) sets an example for lawyers everywhere.

As much as I want to unconditionally love Jethmalani, his invention of a mysterious chronic disease which “draws a woman to a man”, ostensibly making her “mentally unstable” and vitiating the entire prosecution case, crosses all lines on “defence lawyers doing the best to defend their Clients”. While there seems to be nothing on record to show that the victim had any psychosocial disability, it’s a rather calculated and damning accusation even by itself. There is a common perception of hypersexuality among women with disabilities, particularly women with psychosocial disabilities. Being seen as “oversexed” is dangerous because it exposes them to sexual abuse under the guise that they 'enjoy' it. Under no circumstances can such statements be deemed acceptable.

It is, however, a tribute to how amendments to law are always defeasible. The Indian Evidence Act was amended to make it impermissible to put questions in cross examination of the prosecutrix about her “general moral character”. However, there is nothing to stop aspersions on her “mental stability” as explained above, which is entirely relevant in law. And in cases of alleged rape, everything about the victim becomes of crucial importance. Among the various offenses in Chapter XVI of the Indian Penal Code pertaining to offences against the Human Body, it’s possibly the only one where the conduct and personality of the victim plays such an important part in deciding the guilt of the Accused. Think about it - when was the last time the Supreme Court said, “Stop treating a victim of murder like an accomplice”?

Coming back to the great Indian hypocrisy circus, we definitely should outrage about the portrayal of the victim by Ram Jethmalani. But can we, in the same breath, condone the trial by media expose of the man they call Asaram Bapu? Let’s face facts here: as much as two wrongs do not make a right, lurid detail of how receptive he was to “manual stimulation” and front page news articles resembling gossip columns were always going to be countered by equally ridiculous and offensive accusations about the Victim. Of course, Ram Jethmalani may be known (and often admired) for making politically incorrect statements in order to defend his Clients. But with the media coverage of rape cases over the last 10 months, even the humblest of defence lawyers get their day before the media, and the proliferation of local news media means that we know the life stories of both alleged perpetrator and victim by the time arrests are made. And the story is no different, there.

One of the unfortunate aftermaths of the Delhi Gang Rape case is that our overall tolerance for sexual assault cases has increased: our assailants need to be savages who live on the fringes of society and drink and watch porn and do the most horrible acts of violence during the sexual act. Our victims need to be young, hard working and diligent, small town girls with dreams in their eyes, and suffer immensely. Any deviation from the formula and the public is not interested. This affords the parties the neutrality and privacy they deserve, of course, but it defeats the purpose of what anti sexual-assault law should be doing: guaranteeing justice for cases besides the “worst case scenarios”. There will be deviations from the “brutality precedent” set in Delhi, especially when up to nine out of ten alleged perpetrators are known to the victim prior to the rape. The artificial need to canonize victims and demonize perpetrators will lead to inconsistencies which will, eventually, threaten to weaken a prosecution case.

Rape is rape. The antecedents and personalities of the parties concerned are irrelevant, as is their relationship. Accord rights of anonymity to both parties in order to really ensure that justice is not only done, but is also seen to be done. What only matters is proof of the act. Till our efforts to strengthen sexual assault laws concentrate on that, and till we stop enjoying sordid backstories, we are going to have more nonsensical tropes from the real and wannabe Jethmalanis of the world trying to “expose” victims.     

Amba Salelkar is a lawyer, who moved into disability law and policy after six years in criminal litigation. She works withwww.inclusiveplanet.org.in. She tweets at @mumbaicentral